Water Rights

sarahbarah27January 27, 2010

I have a strange question. We are looking into buying land with a small creek that borders it. Someone asked me if we would have water rights. I don't know what that means! haha. Anyway, the land will go to the creek, so I guess i am just wondering what it means to have water rights. I am afraid that we will buy the land and not be able to step foot in the water. If anyone can give me some advice that would be great.

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creek_side

The rights to use the water do not always go with the land. This can be a very big issue in the western US and other arid and semi-arid areas. Where is this property located, and do you have or are you planning to get a boundary survey?

In general, when a creek forms a property boundary, the actual boundary line may be one bank or the other, or it may be a line down the center, or some other arrangement. If the line is the bank on "your" side of the creek, you may indeed not have the right to step in the water, as you will then be stepping onto (into) someone else's property. Local law may make other distinctions.

If you haven't already done so, ask to see a copy of any existing survey. If the listing agent is on the ball, she/he will have obtained a copy of any existing survey, and it will be available to serious buyers.

Any rights that do not go with the land should be disclosed. Ask the listing agent. Make any offers contingent upon all rights you are interested in being extant, including timber and mineral rights.

    Bookmark   January 27, 2010 at 7:41AM
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sarahbarah27

The land is in upstate NY. We are definately going to have a survey done, it is just crazy the things that you have to think of, or know to ask when buying a house/land. I tried to find info on the internet, but was unable to. If we can manage to finally get a hold of our lawyer we will be sure to ask him.

Sarah

    Bookmark   January 27, 2010 at 8:15AM
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creek_side

Be sure to consult a real estate attorney. Real estate law is a legal specialty. A family law attorney may not be up to the task.

    Bookmark   January 27, 2010 at 9:16AM
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sweet_tea

Do some research on RIPARIAN RIGHTS in your area.

In many areas, your property line stops where the water meets the land when bordering a good sized lake or river or the ocean or bay. However, many times the land owner of the property has riparian rights which means they can use the water to fish, boat, access the water, etc. Other times, rules are completely different, especially if a small body of water. Maybe consult a local real estate attorney for advise for a small fee?

I have property that is on the water and my property line stops at the shore. But we have riparian rights to the water - including the ability to put a dock and boat on the water. In our situation, the water itself is considered state owned and the public can use the water to swim, boat, fish, etc. But they cannot access the water via someone else's land without permission of land owner. Often they put their boats in the water at public ramps.
.

    Bookmark   January 27, 2010 at 9:25AM
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linda117117

You should also find out if you are in the flood plain. Flood insurance is VERY expensive and required if building a home.

    Bookmark   January 27, 2010 at 9:34AM
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sweeby

And do be sure the survey is very specific as to where your property ends and where the creek begins. Have the surveyer draw water lines!

We bought a house on a large lot that bordered a creek once. We were told by the seller (builder) that our lot went to the midpoint of the creek; our survey showed an irregular border matching the creek's shape and listed the lot size we had been given. I thought everything was fine...

As it turns out, the builder had held back a 15 feet creek frontage for a future jogging trail (land ownership, not an easement), which we only found out about when he announced plans for the trail. I was very, very lucky in that several of my creek-front neighbors were lawyers who had been told the exact same thing as I had, and who took it upon themselves to fight the builder. The builder settled out of court and deeded us the land we had been told we owned, and the only cost to us was $150 or so court filing fees and costs to replat. Believe me, I KNOW how lucky we were!

    Bookmark   January 27, 2010 at 10:45AM
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sarahbarah27

We will be getting a real estate lawyer, and he is local so he knows the area. I will look into the riparian rights in my area, thanks. I don't think it is in a flood plain, but we don't plan on building near it anyway...plus the land slopes away from our house toward the creek. Sweeby, I can't believe the builder did that to you, you have to be so careful these days!

Thank you all for your help! I hope this all works out!
Sarah

    Bookmark   January 27, 2010 at 11:19AM
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xamsx

sarahbarah27, since you are in upstate NY also check on the gas and mineral rights. You may be surprised at what you find.

    Bookmark   January 27, 2010 at 11:43AM
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sarahbarah27

hum...what are gas and mineral rights?

    Bookmark   January 27, 2010 at 1:18PM
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sweet_tea

FYI. Flood insurance is not always expensive. Ours is under $250/year. However, building a home in a flood zone can be a pain because you might need to follow strict rules, which can be minor or major depending on the flood zone itself (there are different flood zone codes) and any building requirements related to the flood zone.

It is not so bad that you would want to avoid buying a property in a flood zone. But you do want to be aware ahead of time of any possible rules that you would need to follow and maybe get a "what if" quote from an insurance agent before you buy the land. The agent would look up the flood zone map before quoting. You can get flood zone maps from FEMA as well for a small fee.

    Bookmark   January 27, 2010 at 1:22PM
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brickeyee

"hum...what are gas and mineral rights?"

The rights ti mine the ground or drill for natural gas.

They may have been severed from surface ownership rights at a point in the past.

    Bookmark   January 27, 2010 at 4:32PM
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Carol_from_ny

In parts of NYS due to the flooding of about 3 yrs. ago they are redoing the flood maps. What is not in a flood zone right now may be in the next set of maps, so do your homework and make sure your new home to be is not in a questionable area other wise you will be paying for flood insurance.

Gas and mineral rights should be checked as well as timber rights. Also check the zoning laws for the area. The zoning will tell you what kind of structures can be built on your property and your neighbors.

    Bookmark   January 27, 2010 at 5:16PM
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creek_side

FEMA is modernizing the flood map program. Maps are being updated in many locations. The update was just completed in our area. The changes from the old maps were relatively minor.

Here is a link that might be useful: Flood Map Modernization Progarm

    Bookmark   January 27, 2010 at 5:57PM
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lsst

Our land borders a creek and we own to the middle of the creek and have riparian rights.

We have a survey that shows the line and marks the distance from the closest survey pins on dry land.

Check the city or county records. The current land owner may have the info you need recorded with the deed.

    Bookmark   January 28, 2010 at 2:02AM
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sarahbarah27

Oh, we are not planning on building a house on this land, we already have a house! We are just buying the fields that surround the house we already have. I imagine we won't need flood insurance because of the distance our house is from the creek, I think its like 1000ft, and our house is much higher in elevation. But we will surely look into that! We are just waiting and hoping everything works out at this point! Thank you all, I'll update when i know more!!!

    Bookmark   January 28, 2010 at 7:56AM
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brickeyee

Flood insurance is for structures, not vacant land.

    Bookmark   January 28, 2010 at 9:27AM
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rosie_2006

Make sure you check to see if the gas and mineral rights transfer with the property or if the current owner intends to keep them. That should be specified in the deed. If current owner keeps those rights, he can lease them, if he hasn't already, to gas/coal companies and they can drill for wells, etc. without your permission. We purchased land and had the gas/oil rights transferred to us but they had already been leased to a gas exploration company. We have 3 wells on our property but we get royalties on what is taken from the wells. The coal rights did not transfer to us and had been leased to a coal company and they just recently drilled depth holes on our property looking for coal. Be especially diligent.

    Bookmark   January 28, 2010 at 3:31PM
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dreamgarden

"hum...what are gas and mineral rights?"

It means that the gas or oil company who owns the rights will be allowed to put a gas or oil well in your yard.

Check for easements as well. A friend of mine bought a house. His RE agent neglected to tell him there was a utility (electric) easement that went directly through the middle of his driveway to a pole in the back yard. The day after closing, he came home and found his driveway trenched. He was also unable to put a structure (patio, addition, etc) where this easement was.

    Bookmark   January 28, 2010 at 6:57PM
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sarahbarah27

My gosh!!! There are so many things to look out for! Thank you all for the heads up on all these things. We will be sure to mention them to the lawyer!

    Bookmark   January 29, 2010 at 6:51AM
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Carol_from_ny

Just because the creek is 1000 ft away doesn't mean the insurance company will not try and make you buy flood insurance. You may have to produce a map proving that your home is at a higher elevation and would never flood.
We had it happen with the house we are in now. Some idjut in an insurance office saw the surveyed drawings and decided since there was a creek on the property according to the drawings that we had to buy flood insurance. DH had to hunt down a map with the various elevations on it to prove that the house sat considerable higher up.
The PO had had the house insured with the same company we were using so the fact that the creek was there was not really news to them.

    Bookmark   January 29, 2010 at 9:22AM
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creek_side

"hum...what are gas and mineral rights?"

It means that the gas or oil company who owns the rights will be allowed to put a gas or oil well in your yard.

This is kind of misleading in that implies those rights only apply to wells. That is not the case. The rights holders or their lessees can also mine the property. If they hold timber rights, they can log it. Grazing rights allow them to run cattle on it. There are many kinds of severable rights.

    Bookmark   January 29, 2010 at 9:31AM
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dreamgarden

"hum...what are gas and mineral rights?"

It means that the gas or oil company who owns the rights will be allowed to put a gas or oil well in your yard.

"This is kind of misleading in that implies those rights only apply to wells. That is not the case. The rights holders or their lessees can also mine the property. If they hold timber rights, they can log it. Grazing rights allow them to run cattle on it. There are many kinds of severable rights."

I was not trying to being misleading. The OP asked about gas and mineral rights and I answered the question correctly, right? The additional information you added is useful and interesting. Thanks. ;)

    Bookmark   January 29, 2010 at 2:02PM
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rosie_2006

You are correct dreamgarden. But all of these things should be spelled out in Sarah's deed. In our case, the gas rights that the previous owner had were not reserved in our deed. His lawyer apparently forgot to put them in. And you know what, he lost them.

    Bookmark   January 29, 2010 at 2:30PM
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brickeyee

" But all of these things should be spelled out in Sarah's deed."

Or in the chain of deeds to the property.

Things get dropped every once in a while, one of the reasons for doing a title search when purchasing.

Failing to not that a transfer does not include already transferred and recorded rights does not eliminate them.

If the person selling is the first one to withhold rights then they must be on the deed.

    Bookmark   January 29, 2010 at 4:32PM
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creek_side

Things get dropped every once in a while, one of the reasons for doing a title search when purchasing.

Failing to not that a transfer does not include already transferred and recorded rights does not eliminate them.

That can easily happen when one party quitclaims a piece of property to another, often a relative, followed by the second party selling the property to a third party years later. Along the way, the rights that were severed years ago are forgotten and not reflected in the last recorded deed.

As stated, a title search (and insurance) is essential to protect yourself.

    Bookmark   January 29, 2010 at 5:25PM
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sarahbarah27

Yes, we will be getting a title search and insurance. Things are moving right along now, we should be getting a lot of this done this week! Though I know title searches can take a while...we will see what the week brings us!

    Bookmark   February 1, 2010 at 7:42AM
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